He texted Holly that he’d done ‘the most heinous thing possible’. A jury disagreed

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On the first day of spring last year, Luke* was called to the witness box at Melbourne’s County Court. “Nice big voice for the jury,” Judge Anne Hassan instructed the operations coordinator for a property services company, who stood before her accused of rape. “Yes, your honour,” the 25-year-old replied. But Luke would need more than a big voice to convince the jury of his innocence. Several things he’d done, before and after the alleged rape, were difficult to explain.

The first was his admission that, on the night of September 23, 2018, the then 22-year-old had slipped uninvited through a sliding door into 19-year-old Holly Harris’s bedroom. Luke and Holly knew each other as former students at the private Haileybury school. They’d chatted and flirted earlier that year. But in May, when Luke suggested a drive-in date, Holly had declined. She’d become serious about a young man called Tom, her soon-to-be boyfriend. They then had almost no contact, until the evening that upended their lives.

That night Holly, her best friend Mia*, Mia’s boyfriend Josh* and his friends, including Luke, ended up at a bar in Prahran, in Melbourne’s inner east. The drinks were flowing, and Holly’s memory is patchy and flash-like. But after the four shared an Uber home, she was surprised to see Luke behind her as she walked from the kerb to her townhouse in a bayside suburb.

At her front door, Holly says Luke said he loved her. “It was completely out of the blue, considering we hadn’t spoken for months,” Holly tells Good Weekend. She informed Luke that she had a boyfriend and then locked the front door. His version is that Holly briefly let him in, before deciding that no, she had a boyfriend, and that he should leave. Luke told the court that he heard the front door lock.

Luke sat on the porch for five minutes and concluded that Holly had been “wavering” in her refusal. “I felt like she still wanted to be with me,” he said, under questioning from prosecutor Daryl Brown. So he tried the sliding door to Holly’s ground-floor bedroom and was able to open it; two nights before she’d unlocked it for Tom. Luke testified that he heard the shower and knocked on the bathroom door: “Holly, it’s Luke, can I come in?” Luke said Holly replied yes. He undressed, joined her and later had sex with Holly in her bed. “At every step of the way I asked for her consent,” he told the jury.

Holly Harris has a different story. Still very drunk, she remembers turning around in the shower to find Luke standing in the bathroom.

“I couldn’t, in my head, work out how he’d gotten there,” she tells Good Weekend. She remembers asking him what he was doing. And the next snippet of memory, like a scene from a roughly edited montage, has him on top of her, on her bed. Looking back, she believes she may have had a “fawn” response, a common and instinctive reaction of compliance aimed at minimising injury. “He’s appeared in my house, this guy who’s essentially, like, pretty close to a stranger. I think I sort of just went into myself and just let what was happening … happen.”

“There’s been a couple of times in the last few months where I’ve been like, ‘What on earth was the point of all that?’” says Harris.Credit: Peter Tarasiuk

She woke at around 6am in pain, naked and on the wrong side of the bed. She recalls telling Luke to “get out”, then texted Mia: “Mia, help me. Mia omg … Luke raped me I’m not kidding.” Luke went to Josh’s, who later described him to court as looking “visibly shaken and worried”. This was because, Luke explained in court, he’d slept with Holly knowing she had a boyfriend.

Four days later, at 10.13pm, a message appeared on Holly’s phone from Luke. It read, in part: “I’ve done the most heinous thing possible you can do to a woman, and I’ve done it to you. It was never my intention for things not to be consensual, I should of realised what you were communicating to me, but I didn’t, and I pushed it and ever since I’ve felt sick.” Here was the second difficult thing for Luke to explain: an apparent admission to non-consensual sex. But, he told the court, the message was only sent to “placate” Holly. “I felt like that if I just told her what she would want to hear, she would be satisfied enough by that … to never go to the police.” He consistently asserted his innocence: “I never raped her.”

Juries don’t give reasons, so we’ll never know why, but after several days of debate, in September last year, a jury of 12 acquitted Luke of both rape and aggravated burglary. Holly Harris, a law student at Monash University, was devastated. “I was in my own home. And I had told him, ‘No’, then shut him out. He broke in while I was naked in the shower. They should have looked at that and said: ‘That’s not a fair situation, she could not give reasonable consent.’ ”

Many would see the result as proof of the justice system working. The Crown simply failed to prove Luke’s guilt beyond reasonable doubt. But others see the frequent acquittals in these sorts of cases – two people, often young and drunk, alone with no witnesses, one person’s word against another’s – as evidence of a broken system, a “justice gap” for sexual assault victims. A recent analysis of five years of Victorian rape trials indicated that three in four cases where the accused is known to the victim end in acquittal.

“If any business had the success rates of the adversarial system of justice for sexual crimes, it would no longer exist,” says Patrick Tidmarsh, an Australian criminologist working in the UK on Operation Soteria Bluestone, a national initiative aimed at improving the investigation of rape and sexual offences.

But accountability is one thing. Following last year’s high-profile rape trial of former Liberal Party staffer Bruce Lehrmann, many Australians might be wondering whether the personal price of going to court is intolerably high, an almost self-destroying pursuit regardless of the outcome. As the case against Lehrmann unfolded, the alleged victim, Brittany Higgins, was repeatedly questioned about her dress, her drunkenness, her text messages and her actions in the days, weeks and months following the alleged assault. After a mistrial, a second trial was abandoned amid fears for her mental health.

Sydney lawyer and victim-survivor advocate Michael Bradley says the interrogations that complainants go through in sexual assault trials “are designed to tear them to shreds”. (Lehrmann denied ever having sex with Higgins and is now suing for defamation the media that published the original allegations.)

Calls for change are growing, both from victim-survivor advocates and from within legal circles. Recently, two of the Albanese government’s most senior women, Katy Gallagher and Tanya Plibersek, joined the chorus asking for a rethink on rape and related offences. “Survivors of sexual assault know that convicting perpetrators is the exception, not the rule. This has to change,” tweeted Plibersek, whose daughter Anna was sexually assaulted by a former boyfriend (who was convicted).

But behind courtroom doors, as it turns out, old habits and outdated ideas are rendering change an elusive thing.

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In the upper tiers of the law, it’s unusual for judges to publicly criticise each other. But that’s what former federal court judge Tony North appears to be doing, here in his law book-lined corner office at the Victorian Law Reform Commission (VLRC), which he chairs. His targets? State Court of Appeal judges Terry Forrest, Lex Lasry and Mark Weinberg – “three aged men, like myself” – who in November 2020 overturned a jury decision that found a Melbourne man, Jonathon, guilty of rape.

Jonathon was charged after a female friend had fallen asleep on his bed following an evening of nightclubbing. In evidence the three appeal judges described as “cogent and credible”, the woman said she woke to find her pants pulled down to mid-thigh and Jonathon aggressively assaulting her vagina with two fingers. She thought it was her boyfriend but after some minutes, opened her eyes and realised she wasn’t at home.

She said words to the effect of: “What the f---, Jono?” and left. In a pretext call – where police record the complainant talking to the accused – he admitted to penetration and apologised. The Court of Appeal judges accepted that the woman did not consent.

But consent is just one element of a rape charge. The Crown must also prove beyond reasonable doubt that Jonathon did not reasonably believe she was consenting. The judges decided it was possible the woman had given him the impression of consent and quashed the rape conviction. In his reasons, Justice Forrest wrote: “It is plain that, as the normal English term ‘asleep’ is understood, there are various stages of sleep, ranging from deep sleep to something just short of full wakefulness.” It was possible, he said, that the woman engaged in “pre-penetration activities” (such as moaning and “nuzzling into” a person) while “not sufficiently awake to recall doing so”.

The proposition that a woman can convey consent while asleep rankled with some senior figures in the Melbourne legal community. Victoria’s Victims of Crime Commissioner Fiona McCormack described the decision as “extremely concerning”, while in a submission to the VLRC, the state’s Office of Public Prosecutions said the “troubling” decision appeared to set a “low bar for the communication of consent”, rendering it “very difficult” to prosecute similar cases, which were “not-uncommon”. Tony North, too, found the judgment problematic. He says that the Court of Appeal judges produced no evidence that there is a stage of sleep – “a sort of twilight land” – in which you can convey consent. (The judges held that it was common knowledge that “the state of being asleep is not binary in nature”, and so they didn’t need evidence.)

Former federal court judge Tony North says that in sexual assault cases, the focus in court is still regularly on the victim’s behaviour rather than whether they consented.Credit: Eddie Jim

For North, this appeal was just one of many disturbing cases he encountered during the VLRC’s 2020-21 inquiry into how the justice system deals with sexual assault offences.

When North looked closely at how rape trials were run, he was perplexed. The legislation was clear: free agreement to sex is the overriding definition of consent. But the focus in court is still regularly on the victim’s behaviour rather than whether they consented. Whether they flirted, what they were wearing and so on. “That completely contorted the legal framework,” says North. “And so I kept asking: ‘Why was this?’ ”

To get a sense of what was happening behind courtroom doors, the VLRC asked University of Wollongong academic Julia Quilter to analyse 25 Victorian rape trial transcripts. Quilter, who has just finished analysing 75 sexual offence trials in NSW, says her work in both states confirms the disconnect North noticed: progressive law reform over 40 years is being undermined by the way people behave in the actual courtroom.

One of the biggest changes to this area of law is that judges can address juries on common misconceptions. These “directions” can include noting that rape victims may not be physically injured and may not resist (it’s not uncommon to freeze, for example); that a person is not consenting if they wear sexually provocative clothes or have consumed alcohol or drugs; that rapes can occur between people known to each other (Australian Bureau of Statistics data indicate only one in five rapes involve a stranger); that a delay in reporting does not necessarily mean a complainant is lying; and that trauma may impact a person’s recall, such that they describe a sexual offence differently at different times, to different people or in different contexts.

A few of these directions are recent additions, but Quilter found that, in general, the ones that were available to judges during the period she studied were not used in a timely or consistent way. She found cases of judges forgetting to give them or disagreeing with them. She has little time for this sort of thing. “Well, you know, it’s the law,” she says, via phone to Good Weekend from Wollongong.

Older “dinosaur barristers” pass on their playbook of how to defend a rape case with little attention paid to the changing law.

Quilter, now a professor, also found that undermining and blaming complainants is still common. In one trial she analysed, a defence barrister suggested a complainant was giving her soon-to-be rapist easier access by changing from leggings to pyjama shorts as she was getting ready for bed. “The law is not self-executing,” Quilter says. “Human beings are involved. And you actually need Crown prosecutors, defence lawyers and judges to put these things into practice.“

After the VLRC review, Tony North concluded that something was wrong with legal culture: from the judges in the sleep-consent case down to fresh-faced young barristers. This, he thought, had something to do with how older “dinosaur barristers”, as he calls them, mentor younger colleagues, passing on their playbook of how to defend a rape case with little attention paid to the changing law. Younger barristers told the VLRC that they knew some of these cross-examinations were wrong and unethical, says North, but courtroom dynamics stymied change. You might get an “old dinosaur defence barrister who’s out there to slaughter the complainant”, and an older judge who thinks, “Well, this is how I used to do it.” Or maybe there’s a younger judge who is across the new way of thinking, yet worries about coming across as barracking for the complainant, or having his or her directions criticised by the Court of Appeal.

The VLRC recommended more sexual offence education for police, lawyers and judges, and that only judges who have completed an overhauled training course hear these cases. They are among 78 recommendations being considered by the Andrews government (13 other recommendations, around issues such as affirmative consent and removing a condom mid-sex, have already been acted upon). “So in time,” says North, “the influence of the dinosaurs should be reduced, reduced, reduced.”

The morning after her alleged rape, Holly Harris made two decisions: that this event would not ruin her life, and that she would not involve the police. (ABS figures suggest one in five Australian women have suffered sexual violence, but only 13 per cent will make a police report.) “I pretty much went straight into denial,” she says. At dinner that night, Holly told three girlfriends she’d been raped and had a high level of vaginal pain, making it difficult to sit down. The friends urged her to get medical help, so Holly reluctantly went to the nearby Alfred Hospital. But the doctor refused to examine her because, unusually, there was no one available to first conduct a forensic rape examination. She was referred to another hospital, but it was late and Holly didn’t want to worry her parents.

When Luke texted his apology four days later, she felt validated: “It seemed quite genuine.” But a few weeks later, at a 21st party they both attended, she heard he’d been telling people he hadn’t raped her, that she’d “wanted it”. (Luke declines to be interviewed for this article.) She was also unhappy that he continued turning up to the same parties as her.

A month after the alleged rape, she broke down and told her mother Anthea about it. Encouraged by Anthea, Holly met with one of Victoria Police’s specialist Sexual Offences and Child Abuse Investigation Teams, which started looking into it. Holly then briefly dropped the complaint, thinking that, after being questioned by police, Luke would take the situation seriously. But when she heard, through friends, that he still denied responsibility, she reopened the case in mid-2019.

The Director of Public Prosecutions decided to take Holly’s case to court, which is not the norm. Only 23 per cent of sexual assault police reports reached Victorian courts in 2017, and only 20 per cent made it to NSW courts in 2021, the high attrition rate often driven by lack of evidence or the withdrawal of a daunted complainant. Holly says she felt disempowered in the lead-up to court due to poor consultation from prosecutors and police, and the slow-turning cogs of the judicial system, a common feeling for victims. But the gap between her expectations of the justice system and its bruising reality was only just beginning.

On the ground floor of Victoria’s Office of Public Prosecutions, Lucy the court dog emerges through a door and casually drops the small rectangular piece of cardboard between her teeth – her business card – on the ground. A chocolate labrador, she often sits at the feet of rape victims as they give evidence. The nation’s first full-time court canine, Lucy is part of a push to make the legal system less traumatic. But there’s little Lucy can do to protect a victim from the reality of a rape trial. They might reasonably believe they’re at the trial’s centre but the victim is, to the court, simply the complainant and a witness. The Crown’s barrister is there first and foremost to serve the court and the public interest, not them.

A complainant can be required to hand over their phone, passwords, messages, social media accounts, photos and data, while the accused is not. The defence can apply for the complainant’s counselling records, while the accused, with the right to silence, does not have to even take the stand. The Crown must prove guilt beyond reasonable doubt, and in rape cases, due to the nature of the crime – one person’s word against the other, with often no witnesses or physical evidence – doubt can flourish, particularly if alcohol was involved. Indeed, it is the defence’s job to ensure doubt does flourish.

Julia Quilter says alcohol is estimated to be a factor in up to 80 per cent of sexual assaults, with either the complainant or the accused being drunk, or both. In NSW and Victoria, you can’t legally have sex with someone so alcohol-affected that they’re incapable of consenting. But it’s tricky for the Crown to take this line, says Quilter, because the defence will then question the complainant’s recall of events. A typical defence line, she says, might be: “You were so drunk, you have no memory of what occurred. And I put it to you now that you were the one who started unzipping his pants.” Or the defence might argue that a disinhibited complainant was more likely to consent.

Quilter says juries in Australian rape trials rarely receive any expert guidance on the effects of alcohol, despite a large body of evidence being available on how intoxication affects memory. She points to research that suggests a very drunk person is no less unreliable than a sober person about the essential aspects of an assault – they might not remember peripheral details such as the bedspread colour, but often will remember things relevant to the traumatic event. They might have parts of the night that are completely blank, but will recall a clear image of the assault.

“In the 48 to 72 hours after a traumatic event, the brain will not make rational decisions ... How well is this explained to juries?”

The other field rich for cultivating doubt is in how people respond to trauma. Patrick Tidmarsh trains investigators and prosecutors in the UK on the nature of sexual offending. He says defence counsel will often show that a complainant acted “normally” after the event in a bid to cast doubt on their credibility. Yet research suggests there’s no behavioural template for trauma victims, who often do unexpected things. “In the 48 to 72 hours after a traumatic event, the brain will not make rational decisions,” he says down the line from Brighton, England. “But when we get into the justice system, everyone is judged as though they had a rational brain at that time.”

Why would a sexual assault victim take a shower instead of asking for a medical examination? Why would they wash or throw away the clothes they’d been wearing? “Most people would think it’s not possible to be in denial about something like assault,” Tidmarsh says. “But if you understand trauma, denial is typical. How well is that explained to juries?” Tidmarsh would like to see better jury education on sexual trauma, and potentially even the introduction of professional jurors. Julia Quilter, meanwhile, would like to see more expert witnesses called on how alcohol and trauma affect memory, and more research done on how alcohol affects consent.

When Holly Harris appeared before Victoria’s County Court in late August, she took the prosecutor’s advice and was beamed in from a specially built facility away from the courtroom. Giving evidence remotely is now the default for sexual assault victims, a largely successful, trauma-reducing reform. But it may also be having unintended consequences. Holly felt she appeared less real to the jury, by virtue of being seen via video, than Luke and his supporters sitting physically before them.

“There’s nothing more devastating to a defence case than for the jury to see the white-knuckled grip of a victim’s hand on the witness box and the solitary tear sliding down the cheek,” agrees one defence lawyer.

In Holly’s cross-examination, defence barrister Belinda Franjic asked at least 10 questions about whether she’d flirted with Luke at the nightclub and elsewhere. (Tony North describes this line of questioning as “dog-whistling” to the jury: suggesting that flirting in a nightclub somehow gives consent to a sex act several hours later.) But in reading the trial transcript, it’s clear Franjic was trying to tread carefully with Holly. At one point, when Holly was not in the courtroom, Franjic asked Judge Hassan for guidance on her cross-examination. Nevertheless, when Holly returned, the continued questioning – which included putting to her a list of specific sex acts detailed in Luke’s story – left her in tears.

Speaking now, Holly says the cross-examination felt like an attempt to break her. “The questions were disgusting. I got really upset to the point where I couldn’t really answer her any more. I was just saying no, and shaking my head and struggling to sort of breathe because I was crying.”

The window of Julie Condon’s 17th-floor office has a commanding view of Victoria’s Supreme Court. Well, actually, its roof. Right next door is the County Court, where Condon served 19 months as a judge before returning to the bar as a criminal barrister. Now a King’s Counsel, she’s well-placed to comment on rape trials, having overseen several while on the bench and defended many accused of rape.

Condon understands that women often feel like the ones on trial in such cases. But in a legal system that’s set up to be adversarial, with serious, life-altering consequences for the accused, a defence barrister must thoroughly test their reliability. “An adverse verdict means he’s going to jail, he’s going to lose his liberty,” says Condon. “So the allegation needs to be vigorously tested. And cross-examination is not designed to be a pleasant experience.“

Does she agree with Tony North and Julia Quilter that there’s a gap between the law and courtroom practice? It’s difficult to make an assessment about the whole system, Condon says, but she believes times have changed. “If the aim was to humiliate or embarrass the complainant by asking about how long her skirt was, in my view, these days, you would alienate a jury in a second if you engaged in that line of cross-examination.” As a judge, Condon says she did not see any unduly upsetting cross-examinations of rape complainants.

University of Wollongong professor Julia Quilter would like to see more expert testimony on how alcohol and trauma affects memory.Credit:

Other defence barristers who speak to Good Weekend for this story express concern about what they see as a shift in police attitude: that police now often seem to take a complainant’s narrative at face-value, without seeking evidence that may expose weaknesses in it. One senior female criminal barrister tells Good Weekend that this disproportionately affects defendants from disadvantaged backgrounds, who may not have the funds to seek a subpoena to search a complainant’s phone and an expert to extract messages from it. She’s had a number of trials where this information exposed false statements, motives to lie or collusion. “I have never heard of a complainant being reported to the police for making a false complaint. These examples are not, therefore, captured in any statistics,” she says.

So how many rape allegations are false? Good Weekend speaks to another criminal defence barrister who rails against the inconsistencies they see in rape complainants’ stories, yet suspects the percentage of false allegations is probably fairly small. (A 2016 meta-analysis of seven studies of rape allegations in four Western countries put confirmed false police reports at 5 per cent). False allegations can, of course, reach court, but it’s also possible the brutal reputation of rape trials acts as a deterrent. “The system places such a burden on complainants it’s unlikely you are going to have people who are outright lying,” says Julia Quilter.

Upstairs from where Lucy the court dog hangs out, Kerri Judd KC, the Victorian Director of Public Prosecutions, is talking in her roomy corner office about the difficulties that prosecutors face in securing guilty verdicts for rape. For example, for every 23 reports of rape to the police in Victoria in 2010-19, only one person was sentenced, according to the state’s Sentencing Advisory Council. Of the fraction of complaints that get to trial – under a broader category of sexual offences – 52 per cent of defendants were found guilty in Victoria in the year to June 2020, and 43 per cent in NSW (in the year to September 2022). The figures have remained stable in both states over the past decade, but it’s certainly clear that the conviction rate for rape is lower than for many other crimes.

The other thing about rape statistics is that there are two different categories of rape that can skew the figures. A 2021 Crime Statistics Agency Victoria analysis found reports of sexual offences involving strangers – the least common – are more likely to get to court and be proven than cases where the accused is known to the complainant. In further analysis for Good Weekend, the CSAV found that between July 2017 and June 2022, Victorian courts heard 3838 charges of rape where the offender was known to the victim. Of these, 26 per cent had the charge proven and a conviction recorded. Of the 788 stranger rape charges, 34 per cent were proven and a conviction recorded.

Judd says that in cases where the parties know each other, the prosecution often struggles to prove that the accused had no reasonable belief of consent. “If you have somebody giving evidence who says, ‘Look, you know, on reflection, they weren’t consenting. I accept that. But at the time, I reasonably believed they were.’ This is very hard to overcome.” An experienced rape trial prosecutor tells Good Weekend that juries are more likely to convict than they were 10 or 15 years ago, but with acquaintance rapes they still struggle with the hurdle of “beyond reasonable doubt”. “If you had to prove it on the balance of probabilities [as in civil cases], there’d be a lot more convictions.”

British research into jury bias has revealed that even when jurors believe a young man is guilty, they’re often reluctant to convict because they worry the rapist label will damage his future. The high standard of proof, the allowance for doubt and the accused’s right to silence – they all protect against the scourge of wrongful conviction, underpinned by a principle called Blackstone’s ratio, named after the English jurist William Blackstone, who wrote in the 1760s that “it is better that 10 guilty persons escape than that one innocent suffer”.

Certainly parents of young men would appreciate this legal protection, as they navigate the fraught phase when their children start experimenting sexually, often armed with ideas of sexual consent garnered from porn.

But some observers such as Marque Lawyers partner Michael Bradley now believe this formulation places the rights of men to liberty above the rights of women and girls to physical safety. Or, as the Harvard Medical School psychiatry professor Judith Herman once put it: “The legal system is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men.”

In recent years, some victim-survivors have shunned courtrooms and used online tools or the media to tell their story. Indeed, women have sought alternative justice pathways for years, from the list of alleged sexual assault perpetrators written on the bathroom walls of New York’s Columbia University in 2014, to the #MeToo movement’s online outing of sex pests, to American campus databases such as Callisto, which file away anonymous and encrypted reports of sexual violence that can be acted on only if two victims report the same assailant. These approaches can be messy and result in what American moral philosopher Martha Nussbaum describes as “retributive overreach”. They are also scary for men, who fear the stigma of being falsely tarred a sexual predator without any right of reply. But they are likely to continue while the system remains so traumatic and while women perceive that the scales of justice are tipped against them.

Is there a way, then, of making victims feel they can safely engage with the system? Stacey Maloney, head of the sex crimes unit of the NSW Police, has floated the idea of a new “negligent sexual assault” offence, to be dealt with by lower courts, as a way of encouraging more offenders to plead guilty. (Rape cases are highly likely to be contested. As one barrister says, when faced with a jail sentence, young men and their families will remortgage the house and fight the charge “with every fibre of their being”.) One of the Victorian Law Reform Commission’s recommendations that particularly excites Tony North is getting the government to fund a rape complainant to take their alleged rapist to court in the civil jurisdiction, where there’s a lower standard of proof (he envisages this might happen in cases that raise important systemic or legal issues).

The former judge also thinks it’s not a bad thing that recent changes to consent laws in NSW and Victoria – requiring a person to show they took steps to establish consent before sex – might force more perpetrators into the witness box. Marque Lawyers’ Michael Bradley, meanwhile, has suggested doing away with the right to silence for people accused of rape. This would be a radical change and difficult to enforce. When pressed, Bradley says, in practice, it would mean the judge be allowed to direct the jury that they could draw inferences from an accused’s refusal to testify. At present, the jury is told they cannot conclude anything from an accused’s silence.

There are plenty of other reform suggestions on the table: getting rid of committal hearings in Victoria; judge-only trials; screening jurors for rape myths. The VLRC recommends providing victims with personal advocates to help them navigate the system, and with state-funded legal advice – up to the point of trial – that would, for example, help with cross-examinations or defence attempts to get personal information. Victorian Victims of Crime Commissioner Fiona McCormack goes further, advocating for state-funded lawyers to represent victims at trial, making them “equal to, but not in opposition with, the accused”.

In 2021, a woman we’ll call Lou* sat at her kitchen table alone. She was about to do something completely counter-intuitive: call her rapist. In 2013, when she was 18, Lou was raped by a 19-year-old, a friend of a friend, whom she was casually seeing. She was in pain for five weeks. In 2016, Lou worked up the courage to go to the police, but found them discouraging. In March 2021, she went back to police, who told her the only way the allegation would reach court was if there was evidence from a pretext call. After several unsuccessful attempts at the police station, Lou was sent home with recording equipment to phone her rapist.

Lou was terrified. Before the call, she says, she had fantasised about running him over in her car. But it turned out to be a transformative conversation. The man said he’d thought about that night a lot; that he’d always felt they would, one day, have this conversation; that he’d been to therapy about it. He recounted details without any prompting from Lou; apologised and said it shouldn’t have happened, admitted he kept going when Lou had asked him to stop, that he knew she was in pain. It was so powerful, Lou says, for him to confirm that she hadn’t made up this incident, or “dramatised it in my head”.

“It was just sheer luck that I had this really helpful conversation and got a lot of healing from it.”

Ultimately, the police decided there wasn’t enough evidence to take the matter to court. Lou was relieved: “I felt like a part of me had been physically healed after that call. I was like, Okay, we’re good. Like, this is done. The anger and need for him to be punished has gone.”

Lou has become passionate about restorative justice, a healing process that brings the victim and offender together in a facilitated environment, often after receiving counselling and support from trained professionals. The victim gets to explain the impact of the offending and ask questions – Why me? Why did you do it? – while the offender may listen, apologise, or show accountability in the knowledge that, in the ideal models, there are no legal ramifications. In Australia, the ACT is the only jurisdiction that, since 2018, uses restorative justice for adult sex offences as part of the formal legal system. The Queensland government recently announced it would make restorative justice for sexual assault a meaningful option, as it is in New Zealand, the UK and parts of Europe. Across Australia, this idea enjoys widespread support from police, prosecutors, courts, victim advocates, criminal barristers and the VLRC.

It won’t be a solution for everyone. The last place some complainants want to be is in the same room as their perpetrator. But many who have gone through restorative justice pilot programs testify to its healing powers. Lou, now 28, realises the criminal justice system could never have delivered what she really wanted. “It was just sheer luck that I had this really helpful conversation and got a lot of healing from it. The rest of the process was, like, actively really harmful.”

Holly Harris, who never wanted Luke to go to jail, also thinks restorative justice is worth pursuing. And she believes rape trials should be heard by judges alone, partly because of jury bias but also because judges must explain their reasoning, giving victims more closure.

These days, Holly has a lovely, supportive new boyfriend. She’s in her fifth year of law school and is in a good place. She still wonders if going to court was worth it. “There’s been a couple of times in the last few months where I’ve been like, ‘What on earth was the point of all that?’ I literally put myself through hell for years for nothing, essentially.”

* Names have been changed.

Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732).

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